Community Update

Amending Governing Documents Part II – How?

By: Jay Roberts, Esq.

In Part I of this two-part series, we discussed the importance of amending governing documents. Part II discusses tips on how a board of directors can put itself in the best position to have the proposed amendments approved by the membership.

START EARLY:

Work with the association’s counsel to craft the language appropriate for the amendments well before you plan to present it to the membership formally.

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Does a Community Association Board President Have Executive Action Authority or Unilateral Powers?

By: Maritrini Soto Garcia, Esq.

Community associations are not administered by a single director or officer of the board, instead, the affairs of such associations are administered by its board. The articles of incorporation and/or bylaws of an association most often specify the required minimum number of board members. In the condominium context, the Florida Condominium Act provides that in the absence of such specification, the board of administration must be composed of five members (or three members in condominiums with five or fewer units).

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Abbey Park Homeowners Association, Inc. v. Bowen,

508 So.2d 554 (Fla. 4th DCA 1987)

By: Rob Caves, Esq.

Assessments paid by owners are the lifeblood of any community association and efforts to collect assessments are the most consequential and common legal proceedings any association engages in. Typically, there are few valid defenses an owner can raise to challenge the collection of properly adopted assessments. One common defense that is attempted is that the association is failing to properly maintain the common elements of a condominium or the common areas of a homeowners’ association.

The seminal case on the issue of whether owners can withhold the payment of assessments due to the association’s failure to properly maintain the common elements is Abbey Park Homeowners Association, Inc. v. Bowen, 508 So.2d 554 (Fla. 4th DCA 1987). In the case, the appellate court held that the failure to maintain the common elements is not an affirmative defense to the association’s action to foreclose on the unit for the failure to pay assessments. Accordingly, a claim by an owner that the association is improperly maintaining the condominium property would not be a valid defense to the association’s action to collect unpaid assessments or enforce the association’s assessment lien against a unit.

However, there are subsequent cases that hold that while such claims are not affirmative defenses to a foreclosure action by an association, they could constitute counterclaims and entitle the owner to a “set-off” if they were to prove that the association failed to properly maintain the condominium property and such failure resulted in damage to the unit owner or their property. See Qualcom Corp. v. Global Commerce Center Association, Inc., 59 So. 3d 347 (Fla. 4th DCA 2011) (holding that the owner was able to argue at trial that its damages from a roof leak, if proven, could be a “set-off” against the outstanding assessments). However, the facts which would entitle an owner to a set-off would be very specific and would not apply to an owner’s general allegation that the common elements, or common areas, were not being maintained, as was alleged in Abbey Park.

Accordingly, pursuant to the legal principles outlined in the Abbey Park case, the fact that an owner alleges that the association is not properly maintaining the common property, or operating the association, would not be a defense against the association’s action to collect properly levied assessments.

Help Your Clients Avoid Stumbling into Fair Housing Problems

By: Community Association Management Insider

By: David Muller, JoAnn Nesta Burnett

Community Association Management Insider recently asked several legal practitioners to identify those seemingly innocent practices that could land community associations in court for fair housing violations.

David Muller and JoAnn Burnett pointed out that most avoidable disputes were rooted in poor handling of unreasonable accommodation requests, inadvertent familial discrimination, failure to comply with 55+ requirements, and neglecting basic criminal background checks. Others listed lack of sensitivity or inclusion and offensive behavior at meetings as areas in which to err on the side of caution.

To read the entirety of this discussion, please click here for Part 1 and click here for Part 2.